Citation Nr: 0115817
Decision Date: 06/08/01 Archive Date: 06/18/01
DOCKET NO. 00-25 314 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Kissel, Counsel
INTRODUCTION
The appellant served on active duty from February 1982 to
November 1986.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an April 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO).
REMAND
The Board finds that additional medical development to
evaluate the appellant's sole-service-connected disability,
post traumatic stress disorder (PTSD), rated 70 percent
disabling, would prove useful in this case, and is consistent
with VA's duty to assist. In this particular case, review of
the evidence discloses that the appellant was last examined
by VA for compensation purposes in February 2000. However,
since that examination, she has reported receiving additional
outpatient therapy for her psychiatric symptoms on a weekly
basis. See VA Form 9, dated December 11, 2000. Records in
the file indicate that she has been treated at the
Birmingham-VA Medical Center (in the "Woman's Sharing
Group"), and that she was last seen in April 2000. The
appellant also indicated on her Form 9 that her therapist
told her that her Global Assessment of Functioning (GAF)
score would be lower than 50 (which she was given at the time
of the February 2000 examination) because of the problems she
was recently dealing with. She argues that she is totally
disabled and unemployable due to her PTSD, and while it is
shown that she has experienced impairment due to PTSD
(problems with nightmares and flashbacks), the findings on
the February 2000 VA examination reflect current and
significant psychiatric impairment due to a nonservice-
connected psychiatric disability, schizoaffective disorder,
which was the primary Axis I diagnosis on that examination.
In view of the fact that the February 2000 VA examination did
not have benefit of findings/opinions regarding employability
based on a review of the evidence in the claims file, or a
social and industrial survey to corroborate any findings
regarding her inability to work due to PTSD, the Board
concludes that a new VA examination should be conducted to
ensure compliance with the law, VA regulations and precedent
decisions of the U. S. Court of Appeals for Veterans Claims.
See Massey v. Brown, 7 Vet. App. 204 (1994); Allday v. Brown,
7 Vet. App. 517, 526 (1995) (duty to assist requires a
thorough and contemporaneous medical examination,
particularly if there is no additional medical evidence which
adequately addresses level of impairment since previous
examination). The new examination ordered by this remand is
to be conducted following completion of a social and
industrial survey.
The RO is advised that its readjudication of the appealed
claim must be in accord with VA's duty-to-notify and duty-to-
assist obligations under the newly amended versions of
38 U.S.C.A. §§ 5103A and 5107(a). See Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (Nov. 9, 2000).
Accordingly, this case is REMANDED to the RO for the
following development action:
1. The RO should contact the appellant
and request that she identify the names,
addresses, and approximate dates of
treatment for all VA and non-VA health
care providers who have treated her since
he was last seen at the Birmingham-VA
Medical Center in April 2000, as shown by
the available medical records in the
file. All VA medical records identified
by the appellant should be obtained
pursuant to established procedure. This
inquiry should include directly
contacting the Birmingham-VA Medical
Center and requesting copies of all
outpatient therapy reports dating from
April 2000 to the present. With respect
to any non-VA health care providers
identified by the appellant, the RO
should request her authorization to
release any indicated private medical
records. Upon receipt of her signed
authorization(s) for such records, the RO
should attempt to obtain copies of
treatment records identified by the
appellant. All treatment records
obtained as a result of this inquiry
should be associated with the claims
folder.
2. A social and industrial survey should
be conducted by the RO. Family members,
former coworkers and supervisors, members
of the community and the appellant should
be interviewed. The individual
conducting the survey should express an
opinion with complete rationale as to the
impact of the PTSD on the appellant's
ability to secure or follow a
substantially gainful occupation.
3. Thereafter, the RO should schedule
the appellant for an appropriate VA
compensation/fee-basis psychiatric
examination to determine the nature and
extent of impairment caused by her
service-connected PTSD. The appellant's
claims folder and a copy of this remand
must be furnished to the examiner and
thoroughly reviewed in connection with
the examination. All appropriate
diagnostic testing deemed necessary to
render clinically-supported diagnoses and
assessments of functioning/employability
should be administered. In this regard,
the appellant's PTSD should be evaluated
for the specific purpose of assessing the
relative degree of industrial impairment,
in light of her recorded medical and
vocational history. Further, the
examiner is requested to provide a GAF
score for her PTSD, consistent with the
criteria in the DSM-IV. Also, an opinion
addressing the relative degree of
industrial impairment resulting from her
PTSD is requested. Specifically, the
examiner should describe what types of
employment activities would be limited
due solely to the appellant's service-
connected PTSD, bearing in mind the
findings of the social/industrial
assessment and her entire social-medical
history, particularly, the degree of
industrial impairment caused by her
nonservice-connected schizoaffective
disorder. The report of the examination
and the social/industrial assessment
should be thereafter associated with the
claims folder.
The appellant should be given adequate
notice of the requested examination which
includes advising her of the consequences
of failure to report for the examination.
If she fails to report for the
examination, this should be noted in the
claims folder and a copy of
notification(s) of the examination should
be associated with the claims folder.
4. The RO should take any additional
action necessary to comply with the duty-
to-notify and duty-to-assist provisions
of the VCAA.
5. Upon completion of the above, the RO
must readjudicate the appellant's claim
presently in appellate status before the
Board, as listed on the title page, with
consideration given to all of the
evidence of record. If any benefits
sought on appeal remain denied, the RO
should provide the appellant and her
representative an adequate supplemental
statement of the case. The supplemental
statement of the case must contain notice
of all relevant actions taken on her
claim for benefits as ordered by this
REMAND, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. The RO should
allow the appellant an appropriate period
of time for response.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
C. P. RUSSELL
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).